Colon v. Commissioner of Social Security

Filing 23

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/12/18, GRANTING plaintiff's 19 Motion for Attorney Fees. Plaintiff's counsel is awarded $14,810.70 in fees pursuant to 42 U.S.C. § 406(b). Upon receipt of the $14,810.70 award, counsel shall refund to plaintiff the sum of$4,000.00 previously awarded under the EAJA. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALICIA ENID COLON,

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Plaintiff,

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No. 2:15-cv-1072-EFB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Pursuant to 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an

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award of attorney fees in the amount of $14,810.70, which is 25 percent of past benefits due to

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plaintiff.1 ECF No. 19. Plaintiff entered into a retainer agreement with her attorney which

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provides that she would pay counsel 25 percent of any past-due benefits won as a result of the

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appeal in this case. Declaration of Brian Shapiro (“Shapiro Decl.”) ¶ 2, Ex. 1. Counsel spent

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22.5 professional hours on plaintiff’s case. Id. ¶ 5, Ex.4.

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42 U.S.C. § 406(b)(1)(A) provides, in relevant part:

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Whenever a court renders a judgment favorable to a claimant under
this subchapter who was represented before the court by an attorney,
the court may determine and allow as part of its judgment a
reasonable fee for such representation, not in excess of 25 percent of
the total of the past-due benefits to which the claimant is entitled by
reason of such judgment.

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Defendant does not oppose counsel’s request. ECF No. 22.
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Rather than being paid by the government, fees under the Social Security Act are awarded

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out of the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991),

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receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991).

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However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also

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must ensure that the requested fee is reasonable. Bisbrecht v. Barnhart, 535 U.S. 789, 808-09

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(2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory

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ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those

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agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must

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show that the fee sought is reasonable for the services rendered.” Id. at 807.

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After this court found plaintiff to be disabled, she was awarded past-due benefits in the

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amount of $59,242.80. Shapiro Decl. ¶ 4, Ex. 3. Plaintiff’s counsel’s request for $14,810.70,

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which is the 25 percent statutory maximum, would constitute an hourly rate of $658.25. Based on

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the risk of loss taken in representing plaintiff, the quality of counsel’s representation, and

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counsel’s experience in the field of Social Security law, the court finds that rate to be reasonable.

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See Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003) (discussing cases where

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courts granted fees based on hourly rates from $187.55 to $694.44, and awarding effective hourly

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rate of $450.00); Mondello v. Astrue, No. Civ S-04-973 DAD, 2009 WL 636542, at *2 (E.D. Cal.

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March 11, 2009) (awarding fees that represented a rate of approximately $801.00 per hour).

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Further, given the result achieved in this case, the court finds the amount of hours expended to be

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reasonable.

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Counsel concedes that the $14,810.70 award should be offset in the amount of $4,000.00

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for fees previously awarded under the Equal Access to Justice Act (“EAJA”). ECF No. 19 at 1.

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Counsel provides that upon receipt of a fee award in the amount of $14,810.70, he will refund the

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plaintiff the sum of $4,000.00 previously awarded under the EAJA. Id. at 8. See Gisbrecht v.

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Barnhart, 535 U.S. 789, 796 (2002) (holding that where attorney’s fees are awarded under both

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EAJA and § 406(b), the attorney must refund the smaller of the two awards to the plaintiff).

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s counsel’s motion for attorney’s fees (ECF No. 19) is granted;
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2. Plaintiff’s counsel is awarded $14,810.70 in fees pursuant to 42 U.S.C. § 406(b); and

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3. Upon receipt of the $14,810.70 award, counsel shall refund to plaintiff the sum of

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$4,000.00 previously awarded under the EAJA.

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DATED: September 12, 2018.

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